Geofrey Mutuma & another v Republic [2008] KECA 214 (KLR)

IN THE COURT OF APPEAL OF KENYA AT NYERI

Criminal Appeal 324 & 329 of 2006

GEOFREY MUTUMA …………………………….. 1ST  APPELLANT

JOHN KIREMA ……………………………………. 2ND APPELLANT

AND

REPUBLIC …………………………………………… RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Meru (Lenaola & Sitati, JJ) dated 16th November, 2006

In

H.C. Cr. A. 198 & 207 of 2005)

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JUDGMENT OF THE COURT

The two appellants  in this second and last appeal, Geoffrey Mutuma Tharimba and John Kirema  Muthama, the first and second appellants  respectively, were  charged together with another person in the Principal Magistrate’s court at  Maua with two offences of robbery with violence contrary to section 296 (2) of the Penal Code and  one alternative  offence of handling stolen property contrary to section 322 (2) of the Penal Code.  They pleaded not guilty to the two counts and to the alternative count.  About two  months after the plea was taken, the   third person died  while in custody.  The case proceeded against the two appellants.  After full hearing, the learned Acting Principal Magistrate  found them not guilty on the first  count of robbery with violence contrary to section 296 (2) of the Penal Code, acquitted them of that count  under section 215 of the penal Code.  However, they were each found guilty on the second count of robbery with violence  contrary to section 296 (2) of the Penal Code,  convicted and sentenced to suffer death as by law established.  Although the learned Acting Principal Magistrate did not express himself in the alternative charge of handling stolen property contrary to section 322 (2) of the Penal Code  as he should have done, it nonetheless goes without saying, that as it was an alternative to count 2, once an adverse decision has been made on that count against the appellants, the alternative count automatically ceases to be available for any decision.

The appellants felt dissatisfied  with the decision of the learned Principal Magistrate and  moved to the superior court in  Criminal Appeal No. 198 of 2005 at the High Court of Kenya at Meru.  That appeal was in turn dismissed by the superior court and hence this appeal.  The particulars of the charge  in respect of which  both appellants stand  convicted reads as follows:-

“On 7th May, 2004 at Akiriangondu Location Meru North District in the Eastern Province jointly with others  not before court while armed with a rifle robbed Douglas Muriki, two Jack Plane (sic), one radio make Sunny, one  clamp, one  pliers, one panga, cash Kshs.8000/- and assorted shop goods all valued Kshs.16,700/- and at or immediately before or immediately after  time of such robbery threatened  to use actual violence to the said  Douglas Muriithi.”

Brief facts as relates to the evidence adduced  in support of the above charge in respect of which both appellants were convicted may  be stated as follows: On 8th May, 2004 at about 4. 00 a.m. Douglas Muriki Kamathi (PW2) (Douglas) who had a kiosk at Tuku market was asleep in  one room  of his kiosk.  His wife Grace Kairuthi (PW8) (Grace) together with children were sleeping in another room.  The door to the kiosk was hit with stones and it opened.  Two people entered , the kiosk.  One of the intruders removed him from where he was sleeping and laid him on the floor.  One man pointed a gun at him while the other removed  merchandise from the kiosk.  Once on the floor, the other  person slept  on Douglas and asked him for  money.  When Douglas responded by saying he had no money except silver coins, that man  told him that he (that man ) would kill him.  Upon that, Douglas told him that  he would  show him where money was and on hearing that Douglas was released.  He pointed to him where the money was in the other room where Grace was.  As Douglas was pointing  where the money was, the other man came with a torch and directed the torch light onto Douglas’s hand so as to  be sure of the direction Douglas was pointing.  In doing so, the torch light beamed onto the other person who had a gun and Douglas immediately recognized  that person as the  second appellant whom he knew as Kirema and who was a fundi for power saw and used to pass by Douglas place  where Douglas used to work as a carpenter.  Douglas  said in evidence  that  the said appellant was to his left  when the torch light was flashed  at him.  The two thugs proceeded to Grace’s room where they took Kshs.8000/- in a bag.  They also took several shop goods namely, cigarettes, mini pack beers, batteries, a radio, a pair of pliers, two jack planes, a panga, and a clutch clamp.  The two then went away having locked Douglas, Grace and children in the house from outside.  Douglas  screamed and neighbours opened for them.  Douglas   was taken to  Laare police station by the neighbours.  He reported the incident to the police and told the police that he recognized one of the  attackers but he did not know where that person lives.  He asked police for time to trace where the robber he recognized lives.  On his way back he saw the  second appellant. He called him and asked  him to return to him his clutch clamp (Karambe) and the jack planes.  The Second appellant denied having taken the same items and started to run away, but he was  arrested by members of the public who had accompanied Douglas.  They took second appellant to police station where he was received by P.C. Peter Ng'ang'a (PW6) (PC Peter).  The second appellant was interrogated at the police station and he offered to take the police, and Douglas to where the stolen goods were.  Douglas hired a vehicle  and second appellant took them to a home where they found the  first appellant together with another.  First appellant and  that other man James Mutua were arrested.  Police searched the house  referred to in  evidence of Douglas and P.C. Peter as  that of the first appellant, and they  found clutch clamp (Karambe) , eight packets of cigarettes, a pair of batteries, sachets of mini packs, one plier, one radio, one panga, and a pair of shoes.  In the  shamba nearby  a bag was found.  The other goods were not recovered.  The police arrested first appellant and James.  Grace also gave evidence stating that she also recognized  the second appellant as  one of the thieves who was at her house but  her evidence in that aspect was rejected by the trial  court and  in our view rightly so.  On the same day  early in the morning, Justus Mungathia (PW3) (Justus) was going   home from his kiosk.  He saw three people  ahead of him.  The people, on reaching the junction turned towards him.  They knocked him down, threatened him with a gun, took his shoes, a hat and Kshs.4,000/-.  He  did not identify any of them but after a few days when he  heard some people had been arrested, he went to police station, and found his shoes which were stolen had been recovered from  those arrested.  He identified the same shoes which  were  among the items recovered from the house to  which the second appellant took the police and  which was alleged to be the house of  the first appellant. Jacob Meeme (PW4) (Jacob) was  operating  a canteen near that of Douglas.  He heard screams that  early  morning from Douglas’s  canteen.  He had a torch.  He went towards the kiosk of Douglas.  On the way, he met three people one of  whom he identified  through torch light as the second appellant.  The second appellant  told him to lie down but he ran away towards Douglas’s kiosk.  He met Douglas who told him he had been robbed, and  that he (Douglas) had identified one of  the robbers.  He went with Douglas to Laare police station to report the attack and robbery.  Jacob, together with Douglas met  second appellant who, on  seeing them started to run away.  They ran after him and arrested him.  They, together with other members of the public   took the second appellant to police station.  Thereafter, his evidence was a  replica of evidence of Douglas  up to the recovery of stolen  items which were made in his  presence.  He confirmed that  second appellant took them to where the stolen goods were.

On being charged with the offences as we have stated above, and after prosecution case, the first appellant, in his short defence stated that on 8th May, 2004 at  midday he left his home and started to go to his shamba at Nganda, (Whatever that means).  He then went  to a certain home to drink beer.  As he was  drinking together with other people, police  officers  came to that home, searched and  found  beer there.  He was  forced to carry a jerican.  The police officer slapped him. He (first appellant)  held policeman’s jacket and it got torn.  The policeman then told him he would be charged with a case from which he  would never escape.  He was taken to police station and  charged with  the offences as have been stated.  The second  appellant gave a sworn statement in his defence.  He stated that he was working  as a shoe  cobbler at Laare market.  On 8th May, 2004, he left home to go to work at 7. 00 a.m.  At the market he met a vehicle and he was  arrested.  He was taken to police station and was locked up  for three days.  On 17th April, 2004 (?) he was taken  to Maua police station.  Douglas was in the vehicle when he was arrested.  He had  fought with Douglas previously.  He knew him.  As a result of the fighting  he asked Douglas to pay him Kshs.3000/- damages which Douglas had not paid.  We  understand him to say that Douglas implicated him in the robbery  complaint as a result of grudges  between the two of them.  He  denied having taken police to  where the goods were recovered.

The above were the facts that  were before the subordinate court and the superior court.  In convicting the appellants the subordinate court had the following to say  inter alia:-

“I am  convinced that Douglas saw the 2nd accused during the robbery by aid of the torch light when a colleague flashed a torch on him.  It is Douglas himself  who  arrested the 2nd accused on the  following day after the robbery.  I am  thereby satisfied  that he had recognized him.

It is the 2nd accused who led the witnesses to the  house of the first  accused where the complainant’s  stolen clutch clamp and a panga were recovered.  I have no doubt that the said items belonged to the complainant (Douglas). He identified them to the satisfaction of the court.

The 1st accused was found with the stolen items  on the following morning after the theft.  He was therefore in possession of recently stolen goods.  The inevitable  conclusion the absence (sic) of an explanation, is that he was the thief.  The prosecution  has proved beyond all reasonable doubts that the two accused were in the  gang that robbed Douglas Muriki. They were armed with  gun and threatened to use actual violence on the said complainant.  The  charge of robbery with violence  has been proved in count 2.  The accused  are found guilty as charged in count 2 and they are convicted  under section 215 of Criminal Procedure Code..”

As we have stated, the appellants appealed against that decision to the superior court.  The superior court , analysed the evidence  afresh and evaluated it as is required of it in law – see the case of Okeno vs. Republic [1972] EA32 and Achira vs. Republic [2003] KLR 707 at page 710. Having done so, it dismissed the appeal stating  in conclusion:-

“We have said enough, we think, for us  to now conclude by saying that the positive recognition of the 2nd appellant at the  scene in  favourable circumstances by PW2 and PW4 as well as PW8 coupled with the application of the doctrine of recent possession as we have applied above would leave no doubt in our minds that the appellants  were the ones who robbed PW2.  The conviction  on count 2  in the charge sheet and the sentence of death imposed by the trial court  cannot in the circumstances be interfered with.

22. The Appeal is hereby found to be lacking any merit  and  is dismissed.”

Before us, the appellants  through their learned counsel, Mr. Muhoho  Gichimu, have raised two main points being a  summary of their  home-made  grounds of appeal  filed by each of the two appellants.  These points are that as to the first appellant, none identified  him and his conviction was based on the doctrine of recent possession of stolen  items  which  doctrine was not  properly applied as  there was no  proper evidence led as to the  ownership and  exclusive control of the house in which  the alleged stolen  items were recovered.  As to the second appellant, the  complaint was that the evidence of his identification which  was by recognition  partly was not strong enough to sustain  a conviction, and as to the recent possession of the alleged stolen properties, he was  beaten and  did not  offer to show the witnesses where the stolen properties were  voluntarily.  On his part, Mr. Orinda, the learned Senior Principal State Counsel,  conceded that the  conviction of the first appellant, having been based on the evidence of recovery  offered by the second appellant who was a co-accused was evidence of the  weakest kind.  He submitted that  the conviction of the first appellant was “tricky”.  We understood that  to mean that  conviction of first appellant was,  according to Mr. Orinda, based on non cogent evidence and was therefore not based  on proper legal principles.  As to the second appellant, he was of the view that  conviction was based on  firm grounds as he was properly identified and he showed the witnesses where stolen goods were and the same were recovered as directed by him, meaning he knew where stolen goods were.

We have  anxiously considered all the above.  The second appellant  was recognized at the scene by Douglas who  in fact knew him and readily gave the police his name within very  short  time after the incident.  That was evidence of identification  or recognition by a single witness and  caution was still required to act on such evidence – see the case of Abdalla   Bin Wendo & another vs. R [1953] 20 EACA 166.  However, soon after Douglas was attacked and robbed of his goods by  three people, one of whom   he recognized as  the appellant; Jacob who  heard screams from the canteen  of Douglas and responded to the screams by  walking towards  Douglas’s canteen with a torch met the said appellant together with two others.  That was few minutes after the robbery occurred and the second appellant and his colleagues  were escaping  from the scene of robbery.  The second appellant did not spare Jacob.  He told him to lie down but Jacob ran away and later went to the canteen of Douglas.  That was in the  night of the same robbery.  That  in effect put the second appellant at the scene and  clearly displaced his defence alibi.  If that  was not enough  on identification and on recognition, when apprehended by members of the public and taken to police station, the second appellant offered to  and did take the police together with Douglas and Jacob to  where the stolen goods were.  That place was at a house which allegedly belonged to the first appellant.  On reaching that place, first appellant, together with another called James Mutua together with  whom the appellants were  originally charged  were outside the house taking tea, according to P.C. Peter and  on searching the house, some of the items stolen that previous night were successfully recovered, in confirmation of the second appellant’s direction as to where the stolen items  were.  Most of the items belonged  to Douglas and he immediately identified them.  One of the items recovered  was  clutch clamp, an item that was for carpentry and Douglas was a carpenter, the  other item recovered of  importance was a pair of shoes.  The recovery of that item  is  important in that that pair of shoes was at the  hearing identified by Justus  Mungathia (PW3) to  be his shoes.  Those shoes  were stolen from Justus together with Kshs.4000/- by  people he did not know.  That the shoes were recovered  among  the items which were found in  or near the house  pointed out by the second appellant  clearly confirmed  that the  second  appellant was one of the thieves.  Under the  doctrine of recent possession of stolen goods,  second appellant was  constructively either  the  receiver of the goods recovered at the  house to which he directed the  police or he was  the  thief -  See the case of Odhiambo vs. Republic [2002] 1 KLR 241 .  As there was no explanation as to  how he came to  know where the goods were and  therefore how  he came  to be  a constructive  receiver  of  the same goods, the  presumption that he is the thief  was properly made by the trial court and the  superior court

-  See  the case of Andrea Obonyo & others vs. R [1962]  EA 542.  Thus on the  recognition and identification of the second  appellant and his being in recent  constructive possession of the goods that were stolen that very night and his successfully  leading the police to where the  same goods were, we have no doubt in our  minds that the trial court and the superior court  arrived at a proper  and the only inevitable  conclusion that the second appellant was one of the robbers that attacked and robbed Douglas of his properties that  night and  used threats in carrying  out  the same robbery.  We have no reasons to disturb their  decision and the  second  appellant’s  appeal  cannot stand.

As to the first appellant, no evidence of identification  or recognition was adduced against him by either  Douglas  or his wife Grace.  Neither did other witnesses  give positive  evidence of his presence at the scene of robbery that  fateful night.  The main evidence that connected him to the second count was that of the second appellant  coupled with  discovery of the allegedly stolen  items at  a house alleged to  be his house.  That evidence,  we note does not   emanate from the second appellant directly.  In fact in his defence, the second appellant, as we have stated, maintained he was not at the scene of robbery. However, evidence of Douglas and P.C. Peter which were  credible and were accepted  was  that the second appellant took them to  where the goods were.  Douglas stated:-

“We took him to the police station .  At the police station, he was interrogated.  He was beaten.  He said he  will show us where the goods were.  I hired a vehicle, he took us to the  house of Mutuma the  first accused  in the dock.  We  found Mutuma with James.  They were arrested.

P.C. Peter said in  his evidence  as follows:-

“We interrogated the 2nd  accused.  He offered to show us the  members of his gang.  He led us to Mariri village  at the  home of the 1st Accused Geoffrey Mutuma.  We found Geoffrey  Mutuma at his house with James Mutua (deceased).  They were  outside  house taking tea.  We  arrested them.  We searched the  house of Geoffrey.”

Thus whereas the stolen items were indeed found in that  house  alleged by police and Douglas  to be that which  second appellant  told  them belonged to first appellant,  there is no any other evidence that the first appellant was indeed the  owner of that house where stolen  items were found.  He, in his defence,  denied  it stating that he  was  arrested at a changaa den and not at his house. It is  noteworthy  that Douglas, in  cross examination by the  first  appellant stated:-

“I do not know you.  Kirema said that he had stolen the goods with you.”

In short, Douglas did not know the first appellant and by extension did not know his house for certain.  He  relied on what  second appellant said.  Further, we may ask, had the first appellant  exclusive control of  the  house where the goods were found?  P.C. Peter says:-

“There were other goods  in the  house  a part from the exhibits.  There were people at the house.  We arrested your wife for possession of changaa.”

Thus, the answer  to  that question as to whether the  first appellant had exclusive  control of the house  must be  in the  negative.  Indeed his wife, it  would appear  had changaa in that house.  Again, one is not clear as to what role the late James Mutua  who was found with the first appellant at  home taking tea was to play in the entire saga.  If the  first appellant was the sole exclusive owner of the  relevant house then why  was James Mutua also  arrested?  Could he, have been arrested  in an attempt by police  to spread their net wide  as a result of doubt as to who  was the owner of that house?  There was no evidence that the  first appellant was  found in that house.  He was found taking tea outside the house.  There was no evidence,  for example,  that he had key to that house.  All  there was,  was evidence of Douglas  and P.C. Peter  as to  what second appellant said and did.  In law, the second appellant  was a co-accused.  Whatever he  said that led to discovery  was admissible but  what he said  as to who  was with him  at the time of the robbery could  not be admissible the same  having been given to P.C. Peter, a police officer  below the  rank of  Inspector.  In any case,  even the admissible part of his evidence  was evidence of the weakest kind that required other evidence in order that the court could act on it .  In the case of Anyangu & others vs. R [1968] EA 239 at page 240 , the predecessor to this Court stated:-

“A statement which does not amount to a confession is only evidence against the maker.  If it is a confession and  implicates a co-accused it may, in a joint trial be “taken intoconsideration” against that co-accused.  It is, however not  only accomplice evidence but evidence of the “weakest kind”  (Anyuna s/o Omolo and another vs. R [1953] , 20 EACA 218); and can only be used as lending assurance to other evidence against the co-accused (Gopa s/o Gidamebanya &others v. R (1953), 20 EACA 318).”

In law, the evidence of the said appellant, even if we were  to accept that he said the first appellant was part of the gang that  robbed Douglas,  could wrongly be used to  lend assurance to other evidence but could not on its own be relied on for conviction.  What other evidence  was there?  None, as the allegation that the  home or house where goods were  recovered  belonged to the  first appellant could  not stand in view of what we have stated.  That being  the case, we are not  convinced that the conviction of the first appellant was  based on proper evidence in law.  We  feel the superior court  and the trial court  would have reached  a different  conclusions in  view of the above.

In  conclusion, the  first appellant’s appeal succeeds.  His appeal is allowed,  conviction quashed and  sentence of death set aside.  He is released forthwith,  unless otherwise  lawfully held.  The second appellant’s appeal fails and is dismissed.  Judgment accordingly.

Dated and delivered at Nyeri this 23rd day of May 2008.

P.K. TUNOI

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JUDGE OF APPEAL

E. O. O’KUBASU

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JUDGE OF APPEAL

J.W. ONYANGO OTIENO

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR.